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The Enterprise Act 2002 (Share of Supply) (Amendment) Order 2020

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The Enterprise Act 2002 (Share of Supply) (Amendment) Order 2020 EXPLANATORY MEMORANDUM TO THE ENTERPRISE ACT 2002 (SHARE OF SUPPLY) (AMENDMENT) ORDER 2020 2020 No. 748 1. Introduction 1.1 This explanatory memorandum has been prepared by The Department for Business, Energy and Industrial Strategy and is laid before Parliament by Command of Her Majesty. 2. Purpose of the instrument 2.1 The instrument amends section 23A of the Enterprise Act 2002 to extend the powers of the Secretary of State to intervene in mergers on public interest grounds as well as powers of the Competition and Markets Authority (CMA) to assess mergers under competition grounds, by including three new sectors in the definition of a “relevant enterprise”. 2.2 This enables the Secretary of State to intervene in mergers involving specific enterprises which might give rise to one of the public interest considerations set out in section 58 of the Enterprise Act 2002. The three categories of enterprise being added are those concerning: (i) artificial intelligence; (ii) cryptographic authentication; and (iii) advanced materials. 2.3 This instrument adds the three additional categories to the list of relevant enterprises in section 23A, which may be considered a “relevant merger situation” if the share of supply test in section 23 is met. 3. Matters of special interest to Parliament Matters of special interest to the Joint Committee on Statutory Instruments. 3.1 None. Matters relevant to Standing Orders Nos. 83P and 83T of the Standing Orders of the House of Commons relating to Public Business (English Votes for English Laws) 3.2 The territorial application of this instrument includes Scotland and Northern Ireland. 3.3 In the view of the Department, for the purposes of House of Commons Standing Order No. 83P of the Standing Orders of the House of Commons relating to Public Business, the subject-matter of this instrument would not be within the devolved legislative competence of any of the Northern Ireland Assembly as a transferred matter, the Scottish Parliament or the National Parliament for Wales if equivalent provision in relation to the relevant territory were included in an Act of the relevant devolved legislature. 4. Extent and Territorial Application 4.1 The extent of this instrument is England and Wales, Scotland and Northern Ireland. 4.2 The territorial application of this instrument is England and Wales, Scotland and Northern Ireland. DExEU/EM/7-2018.2 1 5. European Convention on Human Rights 5.1 Nadhim Zahawi MP has made the following statement regarding Human Rights: “In my view the provisions of The Enterprise Act 2002 (Share of Supply) (Amendment) Order 2020 are compatible with the Convention rights.” 6. Legislative Context 6.1 Part 3 of the Enterprise Act 2002 (c. 40) (“the Act”) provides the legislative framework in relation to company mergers concerning the Competition and Markets Authority’s (CMA) powers to intervene on competition grounds and the Secretary of State’s powers to intervene on public interest grounds (under section 42). Such interventions may take place where a “relevant merger situation” arises, as set out in section 23. A relevant merger situation is created if two or more enterprises have ceased to be distinct enterprises at a time or in circumstances set out in section 24 of the Act and either the turnover test (section 23(1)) or the share of supply test (section 23(2)) is met. 6.2 The turnover test is met where the value of the enterprise being taken over exceeds £70 million or £1 million, in the case of a “relevant enterprise”. The share of supply test is met where the requirements in section 23(3) or (4) are met or, in the case of a “relevant enterprise”, the requirements of section 23 (4A) or (4B) are met. A “relevant enterprise” is defined in section 23A of the Act, which refers to enterprises active in the following sectors: military of dual use goods subject to export control, computer processing units and quantum computing. 6.3 This Order is one of two instruments which adds three additional enterprise categories to be subject to the turnover test and share of supply test. Article 3 of this Order amends section 23A of the Act to set out what are relevant enterprises for the purpose of section 23. The amended section 23A will set out the existing relevant enterprises and include new categories of enterprises concerning artificial intelligence, cryptographic authentication and advanced materials to which the share of supply test in section 23(4A) and (4B) may apply. 6.4 A separate Order will be made under section 28(6) of the Act, coming into force immediately after this Order to amend the turnover test in section 23(1)(b) of the Act so that, in cases where the enterprise being taken over is a “relevant enterprise”, the test is met if that enterprise has turnover in the UK of over £1million. 6.5 Transactions which amount to a relevant merger situation are subject to UK merger control rules and may be investigated by the Competition and Markets Authority for any implications for competition (s. 22 and s. 33 of the Act (for anticipated mergers)). 6.6 The Secretary of State may intervene in a transaction on specified public interest grounds where there are reasonable grounds for believing that it is a relevant merger situation (s. 42). 6.7 Under s. 59 of the Act there is a separate special public interest intervention regime for certain defence contractors holding confidential information relating to defence and for certain media companies. Under this regime Ministers can intervene in mergers involving relevant enterprises even where the jurisdictional thresholds are not met and there is no question of any scrutiny for competition concerns. DExEU/EM/7-2018.2 2 7. Policy background What is being done and why? 7.1 The UK economy is open to the world. Core to our economic approach is to trade with other countries, to invest in other countries and to welcome foreign investment into our economy. In order to facilitate this open economy, the Government must continue to review and update our framework of laws and policies on protecting national security and on the conduct of mergers. This tradition of periodic refinement and improvement has enabled the UK to remain internationally competitive and a place where people can invest with confidence. 7.2 Most investment into the UK’s economy raises no national security concerns. However, the Government needs to be alert to the risk that having ownership or control of critical businesses or infrastructure could provide opportunities to undertake espionage, sabotage or exert inappropriate leverage. 7.3 As a consequence of the COVID-19 pandemic, the depreciative effect on sterling coupled with financial uncertainty for many enterprises means the risk of hostile actors exploiting the situation through aggressive acquisitions of UK businesses has increased. Furthermore, there is also an increased threat of the UK losing capability to act as a sovereign nation with its own capabilities. 7.4 The Order amends the Enterprise Act 2002 to enable the Government to intervene in a merger or acquisition in specific categories of enterprise should a significant national security risk arise. The Enterprise Act 2002 is the current key legal means for Government to examine mergers for the purposes of national security and other specified public interest criteria. 7.5 In light of technological advancements, economic developments and changes in the national security threat, the Government has concluded that reform is required. The Government acted in 2018 to change the share of supply test and turnover test (as described in the legislative background section) for three categories of enterprise, namely (i) military and dual-use technologies, (ii) two parts of the advanced technology sector, encompassing computing hardware and quantum technologies. 7.6 This instrument adds three further categories of enterprise to legislative framework to which the share of supply test will apply. A separate Order, the Enterprise Act 2002 (Turnover Test) (Amendment) Order 2020 subject to the negative procedure, will apply the turnover test to these further categories. These additional sectors contained in this Order stem from national security and investment consultation on proposed legislative reforms published on 24 July 2018. As part of this consultation, the Government identified the additional enterprise categories as parts of the economy where risks to national security were most likely to arise. 7.7 To be able to address potential national security risks, the Order will be commenced the day after the day on which it is made. The second Order relating to the turnover test (The Enterprise Act 2002 (Turnover Test) (Amendment) Order 2020) will be made and laid immediately after the Share of Supply Order. The Turnover Order will commence the day after it is made. 7.8 The Government considers it necessary for the Turnover Order to be commenced in this manner to ensure that the Secretary of State has the ability to scrutinise a merger or takeover which may give rise to national security concerns at the earliest possible date. The Government considers it proportionate to commence the two Orders after DExEU/EM/7-2018.2 3 they are made as they do not provide a direct burden on businesses, but rather enable the Government to intervene, if necessary, on a public interest consideration. (Further detail is provided in the ‘Legislative Context’ section.) 7.9 The Order has no impact on the forthcoming National Security and Investment Bill, which the Government intends to bring forward when Parliamentary time allows. It is intended as a short-term measure, which will apply until more fundamental reforms can be taken forward through that Bill. The statutory instrument 7.10 As outlined above, the changes made by this Order (and the proposed Order amending the turnover threshold) relate to mergers involving enterprises concerning three areas of the economy: (i) artificial intelligence; (ii) cryptographic authentication; and, (iii) advanced materials.
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